Bench Memos

More on Alan Dershowitz’s Catholic Confusion

In my post yesterday, I should have specifically addressed Alan Dershowitz’s culminating confusion (in this essay):

[I]f it is clear that [Scalia’s] constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church[,] then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

Time permits me only this short response:  I believe that Dershowitz misreads the “published writings” of Scalia to which he refers — namely, Scalia’s May 2002 article in First Things on the morality of his participation in death-penalty cases. In that article, Scalia makes clear the distinctive difficulty that a death-penalty case may pose for the Catholic justice:

My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

By the same token, it would seem to follow that Scalia could not take part in the process of permitting the execution of an individual whom he believed to be actually innocent. But that does not mean that Scalia must conclude that a death-penalty system is immoral if it relies, say, on the vehicle of executive clemency rather than judicial adjudication of “constitutional” claims of “actual innocence” to prevent execution of those actually innocent. 

If Dershowitz’s reading were correct, it would likewise require Scalia to entertain claims of “actual innocence” for a wide variety of crimes, not just for those for which the death sentence has been imposed. After all, for those who are actually innocent of the crimes for which they’ve been convicted, it is surely gravely immoral to commit them to a long prison sentence. (I am of course not contending that the degree of the immorality is identical to that of a wrongful execution.)

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